Triple Talaq ordinance is Overtly Political and Bad in Law
By Aftab Alam
For some time Bharatiya Janata Party (BJP), which is generally viewed by Muslims with skepticism because of its stridently anti-Muslim politics, has suddenly started projecting itself as savior of Muslim women and systematically raising the issue of “gender justice and gender equity” among them.
The Union Cabinet on September 19 approved an ordinance criminalizing the practice of triple Talaq (divorce) or talaaq-e-biddat which was promulgated in the evening itself after assent of the President Ram Nath Kovind. The provisions of the ordinance are almost similar as mentioned in original the Muslim Women (Protection of Rights on Marriage) Bill 2017 passed by the Lok Sabha in December 2017 but stuck in the Rajya Sabha.
Union Law Minister Ravi Shankar Prasad, while unceasingly defending the Ordinance stated that there was “compelling necessity and overpowering urgency” for it as the abhorring practice of triple talaq was continuing unabated despite outlawed by the Supreme Court (SC) last year. He stated that 430 cases of triple talaq have been reported since January 2017 to September 13 this year out of which 201 cases are of the period after the SC’s judgment on triple talaq.
The timing and the manner in which the ordinance has been brought out raises many questions. Contrary to the BJP’s claim the move seems to be more driven by political expediency than a want of genuine reform in Muslim personal law.
There was no need for the Govt to be in great hurry on triple talq issue as the Muslim Women (Protection of Rights on Marriage) Bill 2017 after being cleared by the Lok Sabha is already pending in the Rajya Sabha. Instead of building consensus through addressing the objections raised by the opposition parties who are in a position to block the legislation, the BJP preferred the ordinance route despite knowing that it will have a shorter life.
As per the SC ruling in Krishna Kumar Singh vs. State of Bihar (2017) the government it will have to bring the ordinance back before the Parliament when it meets next for winter session in November or December as re-promulgation of ordinances has been declared by the court as ‘a fraud on the Constitution and a subversion of democratic legislative processes’? The SC has made the placing of every ordinance before the legislature as a mandatory Constitutional obligation because the legislature has to determine the need for, validity of and expediency to promulgate an ordinance.
The main reason behind BJP’s haste decision to criminalize triple talaq is that it wants to place the burden of its collapse on the opposition parties as evident from the statement of Union Law Minister Ravi Shankar Prasad. He squarely blamed the Congress for stalling the bill in Rajya Sabha to prevent the end of suppression of Muslim women due to vote bank considerations despite “a distinguished woman” being at the helm of the Congress until recently.
Prasad’s statement is clear indication that BJP is going to make the issue of triple talaq a major poll plank in forthcoming Assembly elections in Rajasthan, Madhya Pradesh and Chhattisgarh which are due later this year as it did in UP. Prime Minister Narendra Modi had very aggressively raised the issue of triple talaq in the run-up to the 2017 Uttar Pradesh Assembly elections.
BJP wants to use the issue of triple talaq as a double-edged sword. First, it will try to woo Muslim women by masquerading as champion of their cause and at the same time projecting Congress as major stumbling block in their empowerment. Secondly, it will further seek to consolidate its traditional Hindu voters by sending a message that BJP is the only party which does not appease Muslims and has courage to reform the Muslim Personal Law which no other party could dare to do so due to fear of Muslim vote.
Besides overtly political, the move is also fraught with numerous inherent problems. Firstly, the ordinance was not needed at very first place after the SC declaring triple talaq as void and illegal. After SC judgment criminalising triple talaq is meaningless exercise in the eye of law with no consequence. There seems to be tangible logic of penalising a man for an act which is in-consequential.
Moreover, there are adequate provisions in both criminal and civil laws which Muslim women can take recourse to protect their rights such as Section 498 of IPC – cruelty to wives and the Protection of Women Domestic Violence Act, (PWDVA) 2005 which secures the rights of all women facing domestic violence to maintenance, residence, protection from violence and to custody of their children. So the new ordinance adds nothing new.
Secondly, the penalty provided for triple talaq is excessively disproportionate and violates one of the fundamental principles of the criminal law which states that the severity of punishment must commensurate with the seriousness of the crime. The principle of commensurate-deserts permits severe punishments only for serious crimes. Under criminal law jurisprudence imprisonment is necessarily treated as a severe penalty and hence be limited to only serious offenses which cause or risk grievous harm.
The Indian Penal Code provides two years imprisonment even for more serious and heinous crimes such as rioting with deadly weapon which is likely to cause death (S.148) and, promoting enmity between classes of people (S.153-A) etc. In the light of our sentencing pattern there seems to be no logic in awarding three years imprisonment for breach of a civil contract which a Muslim marriage is.
Thirdly, the ordinance has the provision of subsistence allowance for wife and her children determined by a Judicial Magistrate. But there seems to be no answer as to how husband would pay subsistence allowance while in Jail as this practice is more common in poorest strata of Muslim society.
Though the ordinance has incorporated certain changes in the original Bill on the subject which was cleared by the Lok Sabha in December 2017 to allay fears about its possible misuse it still suffers from legal and technical infirmity which needs to be rectified.
For instance it has now introduced the provision of bail but the offence is still cognizable and compoundable which means husband can be arrested without warrant and only a magistrate is empowered to release the accused on bail and that too after hearing the wife. The scope of complainants has also been reduced to wife or blood relations.
Though the ordinance talks about the possibility of reconciliation and compromise by the parties but critics rightly fear that a criminal case against husband would completely jeopardize any such prospect.
The provisions of the ordinance are also contrary to the stated goal which is to help Muslim women and provide them greater security in the matrimonial relations. But what appears from the move is that conversely it would end up harming them. The move may certainly be politically benefitting for the BJP but it is unlikely to do any help to vulnerable Muslim women as propagated by it.
The practice of triple talaq is a social evil and it will not end by merely criminalizing it. Furthermore it is also erroneous to believe that after being criminalized Muslim men would not resort to it as there is no credible empirical evidence to suggest that the rate of crime has been reduced substantially with harsher punishment.